CEH files suitCEH files suit

October 26, 2011By Sarah Brown

A ruling by a federal judge in California allowed the Center for Environmental Health (CEH) to proceed with a lawsuit against FBOs and avgas distributors under state law, but did not address the businesses' claim that federal law preempts state regulations on avgas, the National Air Transportation Association (NATA) announced.

The ruling and subsequent filing are the latest chapter in a legal back-and-forth that started in May when the CEH threatened to sue the businesses for the distribution of leaded fuel under the California Safe Drinking Water and Toxic Enforcement Act, known as Proposition 65. The coalition of businesses, led by NATA, sued for an injunction, claiming that the FAA's responsibility to regulate aviation and flight safety preempted the application of state regulations to an aviation fuel. On Oct. 19, U.S. District Court Judge Anthony Ishii granted a motion by the CEH and the state attorney general's office to dismiss the coalition's suit, NATA said.

The CEH filed its suit in state court the following day, claiming that 46 named and up to 200 unnamed companies had violated Proposition 65 by selling avgas without warning the public about its lead content. The suit asks for significant civil penalties and a prohibition of the sale of leaded avgas unless companies post detailed warnings explaining that they are exposing individuals residing near the airport to lead, NATA said.

The coalition is weighing its legal options, NATA added, but the judge's ruling Oct. 19 does not preclude its original argument about the suit's intrusion into federal authority.

“Judge Ishii's decision to dismiss the coalition's lawsuit was narrowly tailored on two legal technicalities and did not include an opinion on whether the application of Proposition 65 to an aviation fuel was preempted by federal law, as the coalition had claimed,” the association said in a media release.

NATA Vice President of Government and Industry Affairs Eric Byer said NATA is concerned about the impact the ruling, however narrow, has on FBOs and fuel providers in California “that are now facing additional litigation and escalating costs as a result of the CEH's complaint. And for the first time, there are serious concerns about the future availability of avgas in California. All of these concerns have been brought to bear because of Proposition 65 and a private group's relentless effort to penalize FBOs for doing what the FAA and the airports require them to do—sell leaded avgas to general aviation aircraft.”